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Symposium: A major setback for the antidemocratic war of attrition against the death penalty

Kent Scheidegger is the attorney for the Criminal Justice Legal Foundation, which filed an amicus brief in support of the respondents. 

“[I]s it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty …?” Justice Samuel Alito asked at oral argument two months ago in Glossip v. Gross. Yesterday we got the answer. No, it is not.

From great debate to war of attrition

The moral and policy debates on capital punishment are older than the Republic, but until the 1960s the debate was not a constitutional one. In 1958 Chief Justice Earl Warren unequivocally rejected the notion that the death penalty was unconstitutional. The subsequent constitutional debate came to a climax in 1976, when the Supreme Court rejected the argument that the death penalty was unconstitutional but began the process of reading a host of limitations and procedural requirements into the Eighth Amendment.

In the court of public opinion, the opponents lost the argument. Using a poorly phrased question that understates actual support for the death penalty, Gallup has measured consistently high public support since 1934 with only one brief dip below plurality support in 1966.   From 1976 onward, support has been in the 60s and 70s and generally more than double the opposition.

Unable to convince the courts to defy the popular will and unable to convince the public on moral grounds, the opponents in recent years have had more success with a war of attrition. The strategy is to grind capital cases down to a slow crawl and then tell the public that the system is too ineffective and expensive. It is as if I smashed your windshield and dented your fenders with a baseball bat and then said you should sell me your car cheap because it needs so much work.

Evolution of execution methods and Baze v. Rees

One front in this war of attrition has been attacks on methods of execution. In the late nineteenth and early twentieth century, most states adopted the electric chair or the gas chamber in the belief that these methods were less painful than hanging. These methods themselves came under attack, and a gas chamber case reached the Supreme Court in 1992.

Robert Harris was soon to be the first person executed by California in the modern era. He had murdered two teenage boys in order to steal their car for a robbery, and he ate their hamburgers and laughed after the killing. The argument made by the ACLU on his behalf was that the gas chamber was unnecessarily painful because another method was available, one that all the experts agreed was so much better. That method was lethal injection. Justices John Paul Stevens and Harry Blackmun bought the argument, but the majority rejected the claim as having been deliberately withheld until the last minute.

Although California dodged the bullet that time, and Harris was executed, the threat loomed. The simplest way to squelch the litigation and proceed with carrying out justice was to go ahead and adopt the method the defense experts said was better, and the states that had not already adopted lethal injection proceeded to do so. That worked for a little more than a decade.

Opponents of the death penalty then set about attacking the method they had previously touted as the preferred alternative. First, questions were raised as to whether the three-drug method developed in Oklahoma and adopted by the other states presented a risk of severe pain if the first sedative drug, a barbiturate, were not administered properly. It was undisputed that the second and especially the third drugs in the protocol would be extremely painful if the inmate were not sedated prior to their injection. The proposed alternative, said to present a far lower risk, was a larger, single dose of the barbiturate alone. This argument reached the Supreme Court in 2008 in Baze v. Rees.

Baze was a split decision, but the plurality opinion by Chief Justice John Roberts has been universally regarded as the controlling opinion, and the Supreme Court referred to it as such in Glossip. Accepting the inmates’ argument that a method can be declared unconstitutional by comparison to alternatives, the plurality held that “the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” Stated another way, two showings are required: (1) “that the State’s lethal injection protocol creates a demonstrated risk of severe pain”; and (2) “that the risk is substantial when compared to the known and available alternatives.”

Even though Baze upheld the protocol at issue, many states decided to avoid litigation by once again simply adopting the critics’ alternative. Ohio developed and demonstrated a single-drug, barbiturate-only protocol, and many other states followed.

The international angle

Up to this point, the drugs needed for lethal injection had been manufactured in the United States. The FDA had taken the position that it would not strictly enforce the drug requirements of the Food, Drug, and Cosmetic Act against the states’ use of lethal injection drugs because the purpose of the act, ensuring safe and effective drugs for medical treatment, was not implicated by such use. The Supreme Court held that this was within the agency’s discretion in 1985 in Heckler v. Chaney.

Changes in the pharmaceutical marketplace soon made the American death penalty subject to European pressure, however. The manufacturer of sodium thiopental moved its production to Italy, where it came under attack from anti-death-penalty activists and the Italian government. It got out of the market altogether. States switched to pentobarbital, the drug the Humane Society’s manual says is the drug of choice for animal euthanasia. However, the American manufacturer was owned by a Danish company, and again foreign pressure forced a cut-off. The manufacturer imposed resale restrictions on its distributors, and when it sold the rights to the drug to an American buyer, it forced the buyer to continue that policy. Then in 2013, the D.C. Circuit made importation from alternate sources more difficult by ruling that the FDA must strictly enforce limits that Congress had written with medical treatment drugs in mind, purporting to distinguish Heckler by finding differences in the statutory language for importation.

This is the road that brought Oklahoma and Florida to midazolam.

Midazolam and Glossip

Unable to get either pentobarbital or thiopental, Florida and Oklahoma adopted an alternative method of using three drugs, like the method at issue in Baze, but substituting midazolam as the first drug. Midazolam (the generic version of the name-brand drug Versed) is from a different class of drugs. This drug is used to induce anesthesia, but it is not generally considered to be a good choice to use alone for procedures, such as major surgery, that would be extremely painful. It is used alone for invasive but less painful procedures such as colonoscopies. Midazolam has a “ceiling effect,” meaning there is a dose beyond which increased dosage has no further effect. The district court in Oklahoma heard conflicting testimony about whether a massive dose of midazolam such as is used in this protocol would keep the inmate “insensate to pain” as the second and third drugs were injected.

Justice Samuel Alito’s opinion for the Court in Glossip treats the plurality opinion in Baze as the definitive word, as the lower courts universally have. Justice Sonia Sotomayor, in dissent, disputes whether it should be so treated, an interesting topic all by itself.

With that point resolved, the absence of an alternative becomes sufficient to dispose of the case by itself. Thiopental and pentobarbital, which everyone agrees would be preferable if available, are not available thanks to the pressures applied by the anti-death-penalty activists and by European governments.   It is sufficient to reject the challenge to the method that the challengers failed “to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available method of execution.”

For those whose real goal is to halt all executions and who are merely using the pain argument as a front, this holding is a major blow. A requirement that the challenger show that an alternative method is not only superior but available means that it would virtually never be proper for a federal court to halt executions completely in a state as opposed to ordering that one method rather than another be used. Indeed, although the Court did not need to reach it in Glossip, there is a strong jurisdictional argument that a court sitting in a Section 1983 civil rights case has no jurisdiction to issue an order that prevents execution of the judgment altogether.

The second issue in the case is a fact-based one regarding midazolam, and here the Supreme Court’s opinion is less definitive. The Court held that the district court’s factual finding that “midazolam is highly unlikely to render a person unable to feel pain during an execution” was not clearly erroneous. In another trial before another judge with different evidence, the outcome could be different.

Does the requirement to show an available alternative method apply across the board to any method-of-execution challenge? That point is the subject of an exceptionally testy exchange. Justice Sotomayor contends the majority has authorized drawing and quartering or burning at the stake if no alternative is available. The majority says, “That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”

But why is it not true? In my view, the requirement to show an alternative arises under Baze when the claim is made that a method of execution is not one adopted with the intent or the knowledge that it will cause severe pain but rather that the method is one that merely carries an unacceptable risk of severe pain. That would be consistent with the intent/risk distinction in the prison conditions cases from which the Baze plurality drew its test.

The Court may never resolve this question, though, because it is unlikely to ever need to resolve it. No American state is going to knowingly adopt an extremely painful method of execution. The states that retain the death penalty will continue to seek and apply the least painful methods available.

The real fight here is between those who want to see these long-overdue judgments carried out and those who seek an excuse to obstruct their executions. The latter’s ability to obstruct took a big hit yesterday.

Recommended Citation: Kent Scheidegger, Symposium: A major setback for the antidemocratic war of attrition against the death penalty, SCOTUSblog (Jun. 30, 2015, 9:12 AM),